election requirement in Tennessee

2024The election doctrine “assists the defendant in preparing for and defending against the specific charge, protects the defendant from double-jeopardy concerns, ‘enables the trial judge to review the weight of evidence in its role as thirteenth juror[, and] enables an appellate court to review the legal sufficiency of the evidence.’” Qualls, 482 S.W.3d at 10 (quoting State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999)).

2024However, the most significant purpose served by the election doctrine is to “ensure that the jurors deliberate over and render a verdict based on the same offense[.]” Brown, 992 S.W.2d at 391 ; see Shelton, 851 S.W.2d at 138 (“[T]he purpose of election is to ensure that each juror is considering the same occurrence.”).

2026“Because the election requirement safeguards a criminal defendant’s fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election are subject to plain error review.” State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015) (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)).

2021“Because the election requirement safeguards a criminal defendant’s fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election are subject to plain error review.” State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015) (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1975); Kendrick, 38 S.W.3d at 567 ; Walton, 958 S.W.2d at 726-27 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim.

2025As the supreme court has explained, “the election requirement applies to offenses, not to the facts supporting each element of the offense.” Knowles, 470 S.W.3d at 424 ; Adams, 24 S.W.3d at 294 .

2024“The most important reason for the election requirement . . . is that it ensures that the jurors deliberate over and render a verdict on the same offense.” State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000).

2021“The election requirement safeguards the defendant's stated constitutional right to a unanimous jury verdict by ensuring that jurors deliberate and render a verdict based on the same evidence.” Id. at 631 (citing State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999)).

2020“The election requirement safeguards the defendant’s state constitutional right to a unanimous jury verdict by ensuring that jurors deliberate and render a verdict based on the same evidence.” Id. at 631 .

2024However, the most significant purpose served by the election doctrine is to “ensure that the jurors deliberate over and render a verdict based on the same offense[.]” Brown, 992 S.W.2d at 391 ; see Shelton, 851 S.W.2d at 138 (“[T]he purpose of election is to ensure that each juror is considering the same occurrence.”).

2016See Shelton, 851 S.W.2d at 137 ; Adams, 24 S.W.3d at 294 (“The most important reason for the election requirement, however, is that it ensures that the jurors deliberate over and render a verdict on the same offense.”).

2021“Because the election requirement safeguards a criminal defendant’s fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election are subject to plain error review.” State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015) (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1975); Kendrick, 38 S.W.3d at 567 ; Walton, 958 S.W.2d at 726-27 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim.

2021“Because the election requirement safeguards a criminal defendant’s fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election are subject to plain error review.” Knowles, 470 S.W.3d at 424 (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1975); Kendrick, 38 S.W.3d at 567 ; Walton, 958 S.W.2d at 726-27 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim.

2024“The election doctrine refers to the prosecutor’s duty in a case where evidence of multiple separate incidents is introduced to elect for each count charged the specific incident on which the jury should deliberate to determine the defendant’s guilt.” Id. at 9-10 (citing State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994)); see State v. Walton, 958 S.W.2d 724, 727-28 (Tenn. 1997) (granting plain error relief where the State “did not seek to narrow the multiple incidents by asking the victim to relate any of the incidents to a specific month, memorable occasion, or special event” and “did not el

2021“Because the election requirement safeguards a criminal defendant’s fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election are subject to plain error review.” State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015) (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1975); Kendrick, 38 S.W.3d at 567 ; Walton, 958 S.W.2d at 726-27 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim.

2026In generic evidence cases, “the election doctrine may be satisfied . . . by the trial court providing a modified unanimity instruction that allows a conviction only if the jury unanimously agrees the defendant committed all the acts described by the victim.” Id. “[T]he trial court must determine at the conclusion of the State’s case-in-chief whether the proof is sufficiently specific as to apply the strict election requirement or whether the election requirement may be satisfied by giving the modified unanimity instruction.” Id. (citation omitted).

2026In generic evidence cases, “the election doctrine may be satisfied . . . by the trial court providing a modified unanimity instruction that allows a conviction only if the jury unanimously agrees the defendant committed all the acts described by the victim.” Id. “[T]he trial court must determine at the conclusion of the State’s case-in-chief whether the proof is sufficiently specific as to apply the strict election requirement or whether the election requirement may be satisfied by giving the modified unanimity instruction.” Id. (citation omitted).

2026“Because the election requirement safeguards a criminal defendant’s fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election are subject to plain error review.” State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015) (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)).

2026As to the second factor, we observe that “the election requirement applies to offenses, not to the facts supporting each element of the offense.” Knowles, 470 S.W.3d at 424 .

2021“Because the election requirement safeguards a criminal defendant’s fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election are subject to plain error review.” State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015) (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1975); Kendrick, 38 S.W.3d at 567 ; Walton, 958 S.W.2d at 726-27 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim.

2021“Because the election requirement safeguards a criminal defendant’s fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election are subject to plain error review.” Knowles, 470 S.W.3d at 424 (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1975); Kendrick, 38 S.W.3d at 567 ; Walton, 958 S.W.2d at 726-27 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim.

2025Despite its importance in ensuring juror unanimity, strict application of the election requirement presents “practical difficulties” in child sex abuse cases where child victims are frequently “unable to identify the dates on which particular acts were perpetrated.” Qualls, 482 S.W.3d at 9 -10 (quoting Rickman, 876 S.W.2d at 828 ).

2024“The election doctrine refers to the prosecutor’s duty in a case where evidence of multiple separate incidents is introduced to elect for each count charged the specific incident on which the jury should deliberate to determine the defendant’s guilt.” Id. at 9-10 (citing State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994)); see State v. Walton, 958 S.W.2d 724, 727-28 (Tenn. 1997) (granting plain error relief where the State “did not seek to narrow the multiple incidents by asking the victim to relate any of the incidents to a specific month, memorable occasion, or special event” and “did not el

2024If the State were allowed to present evidence of several criminal acts that all allegedly occurred within the time period covered by the indictment but not required to make an election of offenses, “juror unanimity would be compromised because nothing would prevent jurors from ‘reach[ing] into the brimming bag of offenses and pull[ing] out one for each count.’” Id. (quoting Tidwell, 922 S.W.2d at 501 ); see State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993) (“A defendant’s right to a unanimous jury before conviction requires the trial court to take precautions to ensure that the jury deliberat

2018However, the court held that “the fact that the election remedy does not apply does not mean that the defendant is not entitled to the protections upon which [the election requirement] is based,” namely the protection of “the defendant’s right to the unanimous verdict by the jury relative to what constitutes the offense.” Id.

2016The two primary purposes of this election requirement are “to preserve a criminal defendant‟s right under the state constitution to a unanimous jury verdict, and to allow the State some latitude in the prosecution of criminal acts committed against young children who are frequently unable to identify a specific date on which a particular offense was committed.” Id. (citing State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993); State v. Brown, 762 S.W.2d 135, 137 (Tenn. 1988)). . . .

2015The State, however, must elect at the close of its case-in-chief the particular offense for which it is seeking a conviction.- Id: The two primary purposes of this election requirement are “to preserve a criminal defendant’s right under the state constitu tion to a,unanimous jury verdict, and to allow the-State some latitude in the prosecution of criminal acts committed against young children who are frequently unable to-identify a specific date on which a particular offense was committed.” Id. (citing State v. Shelton, 851 S.W.2d 134, 137 (Tenn.1993); State v. Brown, 762 S.W.2d 135, 137 (Tenn

2024“The election doctrine refers to the prosecutor’s duty in a case where evidence of multiple separate incidents is introduced to elect for each count charged the specific incident on which the jury should deliberate to determine the defendant’s guilt.” Id. at 9-10 (citing State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994)); see State v. Walton, 958 S.W.2d 724, 727-28 (Tenn. 1997) (granting plain error relief where the State “did not seek to narrow the multiple incidents by asking the victim to relate any of the incidents to a specific month, memorable occasion, or special event” and “did not el

2016The election doctrine also assists the defendant in preparing for and defending against the specific charge, protects the defendant from double-jeopardy concerns, “enables the trial judge to review the weight of evidence in its role as thirteenth juror[, and] enables an appellate court to review the legal sufficiency of the evidence.” State v. Brown, 992 S.W.2d 389, 391 (Tenn.1999) [hereinafter Brown III] (citing Tidwell, 922 S.W.2d at 500-01 ; Burlison v. State, 501 S.W.2d 801, 803 (Tenn.1973)).

2025A. E LECTION OF O FFENSES G ENERALLY When the State introduces proof of multiple instances of conduct that correspond to a single charged count, it must, “at the close of its case-in-chief, . . . ‘elect’ the distinct conduct about which the jury is to deliberate in returning its verdict on the relevant count.” State v. Smith, 492 S.W.3d 224, 232-33 (Tenn. 2016).3 The primary purpose of the election requirement is to protect a defendant’s state constitutional right to a unanimous verdict by ensuring that each juror deliberates upon, and renders a verdict based on, the same offense.

2020However, “[t]he primary purpose for the election requirement is to ensure that the jury is deliberating about a single instance of alleged criminal conduct so that the jury may reach a unanimous verdict.” State v. Smith, 492 S.W.3d 224, 236 (Tenn. 2016).

2024The election requirement supplements the general unanimity instruction and helps “ensure that the jury understands its obligation to agree unanimously that the defendant committed the same criminal act before it may convict the defendant of a criminal offense.” Qualls, 482 S.W.3d at 10 (citing State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)).

2022The election requirement supplements the general unanimity instruction and helps “ensure the jury understands its obligation to agree unanimously that the defendant - 46 - committed the same criminal act before it may convict the defendant of a criminal offense.” Id. at 10 (citing State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)).

2013The Court of Appeals has written: The doctrine of election “applies where one asserts conflicting rights to property, i.e., claiming under the will and making a separate claim [such as that for an elective share] against the estate.” Elmore v. Covington, 172 S.W.2d 809, 810-11 (Tenn. 1943).

2002The doctrine of election “applies where one asserts conflicting rights to property, i.e., claiming under the will and making a separate claim [such as that for an elective share] against the estate.” Elmore v. Covington, 172 S.W.2d 809, 810-11 (Tenn. 1943).

2026See Qualls, 482 S.W.3d at 18 . “[A] non-structural constitutional error requires reversal unless the State demonstrates beyond a reasonable doubt that the error is harmless.” Rodriguez, 254 S.W.3d at 371 (citations omitted).

2022See id. (noting that while the election doctrine assists the defendant in preparing for and defending against specific charges, protects the defendant from double-jeopardy concerns, enables the trial court to review the weight of the evidence as the thirteenth juror, and helps an appellate court review the legal sufficiency of the evidence, the most important purpose served by the election doctrine is to ensure juror unanimity); State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (holding that when an appellate court conducts a harmless error analysis, “the crucial consideration is what impac

2025Id. at 8 (citing State v. Clark, 452 S.W.3d 268, 295 (Tenn. 2014)).

2016See State v. Clark, 452 S.W.3d 268, 295 (Tenn.2014) (“Whether jury instructions are sufficient is a question of law [that] appellate cotes review de novo, with no presumption of correctness.”)' (citing State v. Hawkins, 406 S.W.3d 121, 128 (Tenn.2013); Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn.2011)).

2016See, e.g., Vinson v. State, 140 Tenn. 70 , 203 S.W. 338 , 339 (Tenn.1918) (requiring election of offenses when State adduced proof of three instances of single charged offense of statutory rape).' Moreover, this Court has implied in two more recent cases that, but for instances such as a statutory exception, see State v. Buford, 216 S.W.3d 323, 325-26 (Tenn. 2007), or a; continuous course of conduct offense, see State v. Hoxie, 963 S.W.2d 737, 743 (Tenn.1998), the election requirement would apply to offenses outside of the child sexual abuse context.

2010However, our supreme court has also held that the trial court does not need to provide the jury with an enhanced unanimity instruction, “even in cases where the proof does indicate more than one offense,” because “[t]he election requirement itself alleviates any unanimity concerns.” Id. at 635 ; see also State v. Buford, 216 S.W.3d 323, 325 (Tenn. 2007) (“Moreover, even in cases in which the proof indicates more than one offense, Tennessee requires an election of offenses instead of an enhanced unanimity instruction.”).

2016See, e.g., Vinson v. State, 140 Tenn. 70 , 203 S.W. 338 , 339 (Tenn.1918) (requiring election of offenses when State adduced proof of three instances of single charged offense of statutory rape).' Moreover, this Court has implied in two more recent cases that, but for instances such as a statutory exception, see State v. Buford, 216 S.W.3d 323, 325-26 (Tenn. 2007), or a; continuous course of conduct offense, see State v. Hoxie, 963 S.W.2d 737, 743 (Tenn.1998), the election requirement would apply to offenses outside of the child sexual abuse context.

2015See Vinson v. State, 140 Tenn. 70 , 203 S.W/338, 339 (1918) (“The defendant is entitled to require the election before he introduces any proof so that he can meet by his proof the evidence upon which the [S]tate relies.” (emphasis added)); see also State v. Kassebeer, 118 Hawai’i 493, 193 P.3d 409, 425 (2008) (holding that an election error could not be cured by closing argument “because the prosecution’s election of the specific act must take place at or before the close of its case-in-chief, thereby rendering insufficient its attempt to do so during closing arguments” (citation omitted)).

2013Tennessee has long recognized the “established rule in equity that a man shall not take any beneficial interest in a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat, or in any way prevent, the full effect and operation of every part of the will[.]” Williams v. Williams, 83 Tenn. 438, 445 (1885) (internal quotation omitted).

2002Tennessee has long recognized the “established rule in equity that a man shall not take any beneficial interest in a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat, or in any way prevent, the full effect and operation of every part of the will[.]” Williams v. Williams, 83 Tenn. 438, 445 (1885) (internal quotation omitted).

2004Those states which require an enhanced unanimity instruction appear to rely upon it instead of, not in addition to, an election requirement.” Johnson, 53 S.W.3d at 635 (citing State v. Greene, 623 A.2d 1342, 1344-45 (N.H. 1993); State v. Weaver, 964 P.2d 713, 720 (Mont. 1998)).

2004Those states which require an enhanced unanimity instruction appear to rely upon it instead of, not in addition to, an election requirement.” Johnson, 53 S.W.3d at 635 (citing State v. Greene, 623 A.2d 1342, 1344-45 (N.H. 1993); State v. Weaver, 964 P.2d 713, 720 (Mont. 1998)).

2004Those states which require an enhanced unanimity instruction appear to rely upon it instead of, not in addition to, an election requirement.” Johnson, 53 S.W.3d at 635 (citing State v. Greene, 623 A.2d 1342, 1344-45 (N.H. 1993); State v. Weaver, 964 P.2d 713, 720 (Mont. 1998)).

2004Those states which require an enhanced unanimity instruction appear to rely upon it instead of, not in addition to, an election requirement.” Johnson, 53 S.W.3d at 635 (citing State v. Greene, 623 A.2d 1342, 1344-45 (N.H. 1993); State v. Weaver, 964 P.2d 713, 720 (Mont. 1998)).

2016Id. (“While we agree with the Court of Criminal Appeals that the unlawful actions which constitute the offense of stalking may in some instances be separate and distinct crimes, we conclude that when the only offense charged requires proof of a continuous course of conduct, the election requirement does not apply.”).

2016See, e.g., Vinson v. State, 140 Tenn. 70 , 203 S.W. 338 , 339 (Tenn.1918) (requiring election of offenses when State adduced proof of three instances of single charged offense of statutory rape).' Moreover, this Court has implied in two more recent cases that, but for instances such as a statutory exception, see State v. Buford, 216 S.W.3d 323, 325-26 (Tenn. 2007), or a; continuous course of conduct offense, see State v. Hoxie, 963 S.W.2d 737, 743 (Tenn.1998), the election requirement would apply to offenses outside of the child sexual abuse context.

2016See, e.g., Jones, 270 Cal.Rptr. 611 , 792 P.2d at 659 ; 10 State v. Petrich, 101 Wash.2d 566 , 683 P.2d 173, 178 (1984), overruled on other grounds by State v. Kitchen, 110 Wash.2d 403 , 756 P.2d 105 (1988). 11 . " *13 California applies the either/or approach to the election doctrine, but as the California Supreme Court recognized in Jones , neither an election nor a. unanimity instruction is very helpful where the victim is unable to distinguish between a series of acts, any one of which could constitute the charged offense.” 270 Cal.Rptr. 611 , 792 P.2d at 650 .

2016See, e.g., Jones, 270 Cal.Rptr. 611 , 792 P.2d at 659 ; 10 State v. Petrich, 101 Wash.2d 566 , 683 P.2d 173, 178 (1984), overruled on other grounds by State v. Kitchen, 110 Wash.2d 403 , 756 P.2d 105 (1988). 11 . " *13 California applies the either/or approach to the election doctrine, but as the California Supreme Court recognized in Jones , neither an election nor a. unanimity instruction is very helpful where the victim is unable to distinguish between a series of acts, any one of which could constitute the charged offense.” 270 Cal.Rptr. 611 , 792 P.2d at 650 .

2025See State v. Johnson, 53 S.W.3d 628, 631 (Tenn. 2001); State v. Branham, 501 S.W.3d 577, 594 (Tenn. Crim.

2025State v. Rimmer, 623 S.W.3d 235 , 255-56 (Tenn. 2021) (citing State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016).